Assistant Attorney General Nicholas Katzenbach (right) faces off against Governor George Wallace at the University of Alabama in 1963. In a memo, Katzenbach warned President Lyndon Johnson that bringing in federal troops would be "regarded by the public as provocative and might well give rise to more breaches of the peace than would otherwise occur." (Library of Congress)

Writings
of OLC and its predecessors date back to 1933, but OLC did not begin publishing
its opinions until January 1977. In this first volume of a new supplemental
series, OLC is publishing a number of opinions written between 1933 and 1977.
The volume includes at least one opinion from each Assistant Attorney General
during that era, and several from former Chief Justice William Rehnquist and
current Associate Justice Antonin Scalia.

Many of the opinions address legal
issues related to significant historical events, including presidential action
during World War II, the blockade of Cuba, U.S. incursions into Cambodia during
the Vietnam War, and Watergate. And many involve legal issues that continue to
have great relevance today, including appointment and removal of executive
branch officers, executive privilege, the use of military force, and
presidential control of communications during wartime.

Not only are these memos fascinating on their merits (see below), they also tell us a great deal about the way high officials spoke the language of the law back in the day -- and how that language has changed over the generations. The older memos tend to be shorter and much more succinct. The later memos tend to be longer -- just like the Supreme Court decisions they occasionally generated. Here are my five favorites (in no particular order) of true '"first drafts of history":

1. Use of Marshals, Troops and Other Federal Personnel for Law Enforcement in Mississippi (July 1, 1964)

Here one of the unsung heroes of the civil rights movement -- Nicholas Katzenbach, in his capacity as deputy attorney general -- is giving President Johnson cogent advice about the "practical" problems inherent in sending federal troops to the Deep South in the heat of the fight against racial segregation. Send in the FBI, Katzenbach argues, but don't send in the troops. Much of what Katzenbach told the White House -- and, remember, this was nearly one year before the August 1965 passage of the Voting Rights Act -- was based upon his first-hand observations of Southern intransigence. The introduction of federal authority into the South could both create and halt chaos -- and the feds knew it. From the memo:

There is another practical problem,
however, which is the crux of the matter. The experience of the Department in
the Oxford, Mississippi, crisis and in the several disturbances in Alabama convinced
all those who participated that the most crucial factor in maintaining law and
order in a community gripped by racial crisis is the support of state and local
law enforcement officers. If they are clearly determined to support law and
order, the prospects of violence are considerably reduced. If they encourage
violence or abdicate responsibility for law enforcement functions, violence on
a substantial scale is virtually certain to occur and the possibility of maintaining
order by any means short of the use of federal troops becomes negligible.

Once local law enforcement ceases to
function in any sizable area, the number of personnel required to maintain
control without the actual use of weapons exceeds the manpower resources of every
branch of the federal service except the military. It is essential, therefore,
to encourage state and local law enforcement agencies to carry out their
responsibilities and, if at all possible, to avoid using federal personnel in
such a way so as to provide an excuse for abandonment of responsibility by such
agencies. If marshals or agents of the Bureau are used in any obvious way as guards
in Mississippi, without the active support and cooperation of local officials, local law enforcement will tend to
break down.

This is not merely because local
officials resent the intervention of outsiders, although that is an obvious
factor. The fact is that in Mississippi the use of federal law enforcement
personnel, particularly marshals, is regarded by the public as provocative and
might well give rise to more breaches of the peace than would otherwise occur. Particularly
if the civil rights workers involved engage in demonstrations and other mass
activities while accompanied by marshals, their function will soon cease to be
one of preventing clandestine violence and become one of maintaining public
order among considerable numbers of people over a large area. In that
situation, our experience is that without the support of local officials the maintenance
of order requires the use of troops.

Even before Germany surrendered to the Allies in May 1945, President Harry S. Truman had appointed United States Supreme Court Justice Robert H. Jackson to "act as the representative of the United States and as its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories." Justice Jackson was an inspired choice for many reasons (and served his nation admirably during the Nuremberg trials) but his appointment initially raised some separation-of-powers concerns. In response, the Justice Department offered this:

It is hardly necessary to call
attention to the fact that the undertaking involved-- the indictment, prosecution,
and trial of the chief war criminals in Europe-- is of supreme importance to the
whole civilized world. Nor is it necessary to point out that this grave
undertaking is unique in the history of judicial procedure. It was, therefore,
of the utmost importance that the Chief of Counsel for the United States be an
exceedingly able man, of wide experience, of exceptional physical vigor, of
peculiar aptitude for the task, and of great legal attainments. It was equally
important that the President of the United States should be entirely free to
select that citizen of the United States who he felt was best qualified to perform
the duties of this office.

It must be conceded that Mr. Justice
Jackson is eminently qualified to discharge the duties and responsibilities of
the task assigned him. His record of accomplishment as Chief Prosecutor for the
United States in the trial of war criminals now being conducted at Nuremburg
(sic) speaks for itself. His record in this respect is, in fact, a complete
justification of his appointment. The appointment of Justice Jackson for this
special mission is not only without legal objection, but it is also supported
by ample precedent. It is a well established practice for the President to
secure the services of federal judges in connection with important national and
international matters.

This practice arose long ago. It is
well illustrated by the following examples: Chief Justice Jay served as special
envoy to England at the request of the President. Chief Justice Ellsworth
served as special envoy to France. Chief Justice Fuller twice acted as an
arbitrator of international disputes. Circuit Judge Putnam served as a
commissioner under a conference with Great Britain relating to the seizure of
vessels in the Bering Sea. More recently, Justice Roberts served as chairman of
the board appointed by President Roosevelt to investigate the Pearl Harbor disaster
of December 7, 1941.

As the stated legal (and political) justification for one of President Nixon's most controversial foreign policy acts, this memo is fascinating on its merits. It's even more remarkable when you consider that it was written by William Rehnquist, then an assistant attorney general, who just 527 days later would be nominated to the Supreme Court by the president for whom this memo was written. Rehnquist's conclusions in 1970 are particularly interesting in light of his position in one of the last famous cases he would decide as Chief Justice of the United States. In 2004, in Hamdi v. Rumsfeld, he signed on to Justice Sandra Day O'Connor's ruling in which she wrote that war "is not a blank check" for presidential power.

The Rehnquist memo is much longer than most of that era -- 18 pages -- and if the justice later came to regretsome of the factual assertions in it, I am not aware of it. In fact, this memo followed him around for the rest of his career, coming up both at his initial Senate confirmation hearing in 1971 and then again upon his ascension to chief justice in 1986. The date of the writing -- May 14, 1970 -- means that it was completed almost exactly one year afterThe New York Timesrevealed President Nixon's secret bombing campaign in Cambodia, and only 10 days after the Kent State shootings. From the OLC memo, in which Rehnquist famously asserts that "the United States has in no sense gone to 'war' with Cambodia:"

If substance prevailed over form in
establishing the right of the federal government to fight the Civil War in
1861, substance should equally prevail over form in recognizing congressional
sanction for the Vietnam conflict by the Gulf of Tonkin resolution, even though
it was not in name or by its terms a formal declaration of war. Viewed in this
context, the President's determination to authorize incursion into the
Cambodian border area by United States forces in order to destroy sanctuaries
utilized by the enemy is the sort of tactical decision traditionally confided
to the Commander in Chief in the conduct of armed conflict.

From the time of the drafting of the
Constitution it has been clear that the Commander in Chief has authority to
take prompt action to protect American lives in situations involving
hostilities. Faced with a substantial troop commitment to such hostilities made
by the previous Chief Executive, and approved by successive Congresses, President
Nixon has an obligation as Commander in Chief of the country's armed forces to
take what steps he deems necessary to assure their safety in the field. A decision
to cross the Cambodian border, with at least the tacit consent of the Cambodian
government, in order to destroy sanctuaries being utilized by North Vietnamese
in violation of Cambodia's neutrality, is wholly consistent with that obligation.
It is a decision made during the course of an armed conflict as to how that
conflict shall be conducted, rather than a determination that some new and previously
unauthorized military venture shall be undertaken.

By crossing the Cambodian border to
attack sanctuaries used by the enemy, the United States has in no sense gone to
"war" with Cambodia. United States forces are fighting with or in support of
Cambodian troops, and not against them. Whatever protest may
have been uttered by the Cambodian government was obviously the most perfunctory,
formal sort of declaration. The Cambodian incursion has not resulted in a
previously uncommitted nation joining the ranks of our enemies, but instead has
enabled us to more effectively deter enemy aggression heretofore conducted from
the Cambodian sanctuaries.

4. Authority Under International Law to Take Action if the Soviet Union Establishes Missile Bases in Cuba (August 30, 1962)

This memo answers a question none of us ever likely have asked: What was going on in the Office of Legal Counsel on the night of August 29, 1962? The answer, we now know, is that Kennedy Administration lawyers were hastily preparing a memo in response to U-2 spy plane photographs, taken on August 29, 1962, that for the first time showed surface-to-air missile sites being constructed on the island of Cuba. "In general," the White House lawyers quickly concluded, "it is our view that international law would permit use by the United States of relatively extreme measures, including various forms and degree of force.."

Mind you, this was six weeks before the Cuban Missile Crisis was sprung upon a (largely) unsuspecting world -- and before the Kennedy administration was forced to confront even more direct evidence of Soviet missile work on Cuba. Reading the memo now -- "the statement should acknowledge an obligation on the part of the United States to observe a rule of proportionality" -- it's easy to see in it the seeds of the Kennedy brothers' approach and, ultimately, their solution, to the crisis. But then there are jolting passages like these:

Although it is true that traditional
legal concepts of general application do not expressly recognize interests in
bloc security, the Monroe Doctrine constitutes an explicit qualification on a
regional basis of general legal concepts insofar as the Western Hemisphere is
concerned. The history of the Doctrine includes many incidents which emphasize
its purpose to prohibit flatly the adherence of territories in the Americas to
European or Asiatic power blocs, or for that matter the transfer by them of
allegiance from one bloc to another.

The premise underlying this purpose--
that peace and security in the Hemisphere could be assured only by insulating
it from the unstable alliances and rivalries of Europe and Asia-- squarely
contradicts the balance-of-power policies that infuse the doctrines of general
application which are altered by the Doctrine. Moreover, although publicists in
the field of international law have not yet formulated concepts and doctrines
which expressly recognize the changed world situation, it seems probable that
international law, as reflected in the actual practices and expectations of
states, already recognizes the decisive importance of bloc security today in certain
geographic areas. International law is, after all, essentially a generalized
statement in terms of rules and policies of the reasonable expectations of
states as derived from their practices in making claims and reacting to the
claims of others.

The Western states have, of course,
condemned as unlawful the Soviet intervention in Hungary, directed as it was
against a revolt which at the time posed a purely political threat against the
Soviet Union. It may be doubted, however, whether the United States would have protested
seriously the use of force by the Soviet Union if it had been designed for the
limited purpose of compelling abandonment of a plan to install Western missile
bases in Hungarian territory.

Good call on this one, Roosevelt Administration lawyer J.T. Fowler. You both concluded that Congress did have the constitutional authority to grant citizenship to Einstein and that it "may be unwise" to do so. From the memo:

Mr. Volker has stated that the files of
the Bureau of Naturalization disclose that no question concerning the power of
Congress to confer citizenship in such manner was raised until recent years.
Formerly, they considered such questions when presented only upon consideration
of the merits of the particular case, but lately they have inclined to the view
that such naturalization may be construed as a violation of the constitutional
provision concerning "an uniform Rule." He says they have no authorities, but
rely solely upon the language of the Constitution.

I think the view presently
entertained by the Bureau of Naturalization is erroneous. As indicated above,
the uniformity mentioned is geographical uniformity. Prior to the Constitution when
the states exercised the power of naturalization, it was possible for a person to
be a citizen in one state and an alien in another. It was this condition which
the constitutional provision was intended to remedy. Furthermore, the practice,
since the earliest days, is opposed to the view that Congress may not
discriminate against or in favor of aliens upon considerations of race, nationality,
geographical residence (either abroad or in this country), relationships by
blood or consanguinity, periods of residence, education, etc.

In other words, Congress has the
sole power to determine the requisites of citizenship by naturalization, and to
determine even more specifically who may or who may not be admitted to such
citizenship.

Most Popular

Writing used to be a solitary profession. How did it become so interminably social?

Whether we’re behind the podium or awaiting our turn, numbing our bottoms on the chill of metal foldout chairs or trying to work some life into our terror-stricken tongues, we introverts feel the pain of the public performance. This is because there are requirements to being a writer. Other than being a writer, I mean. Firstly, there’s the need to become part of the writing “community”, which compels every writer who craves self respect and success to attend community events, help to organize them, buzz over them, and—despite blitzed nerves and staggering bowels—present and perform at them. We get through it. We bully ourselves into it. We dose ourselves with beta blockers. We drink. We become our own worst enemies for a night of validation and participation.

Even when a dentist kills an adored lion, and everyone is furious, there’s loftier righteousness to be had.

Now is the point in the story of Cecil the lion—amid non-stop news coverage and passionate social-media advocacy—when people get tired of hearing about Cecil the lion. Even if they hesitate to say it.

But Cecil fatigue is only going to get worse. On Friday morning, Zimbabwe’s environment minister, Oppah Muchinguri, called for the extradition of the man who killed him, the Minnesota dentist Walter Palmer. Muchinguri would like Palmer to be “held accountable for his illegal action”—paying a reported $50,000 to kill Cecil with an arrow after luring him away from protected land. And she’s far from alone in demanding accountability. This week, the Internet has served as a bastion of judgment and vigilante justice—just like usual, except that this was a perfect storm directed at a single person. It might be called an outrage singularity.

Forget credit hours—in a quest to cut costs, universities are simply asking students to prove their mastery of a subject.

MANCHESTER, Mich.—Had Daniella Kippnick followed in the footsteps of the hundreds of millions of students who have earned university degrees in the past millennium, she might be slumping in a lecture hall somewhere while a professor droned. But Kippnick has no course lectures. She has no courses to attend at all. No classroom, no college quad, no grades. Her university has no deadlines or tenure-track professors.

Instead, Kippnick makes her way through different subject matters on the way to a bachelor’s in accounting. When she feels she’s mastered a certain subject, she takes a test at home, where a proctor watches her from afar by monitoring her computer and watching her over a video feed. If she proves she’s competent—by getting the equivalent of a B—she passes and moves on to the next subject.

The Wall Street Journal’s eyebrow-raising story of how the presidential candidate and her husband accepted cash from UBS without any regard for the appearance of impropriety that it created.

The Swiss bank UBS is one of the biggest, most powerful financial institutions in the world. As secretary of state, Hillary Clinton intervened to help it out with the IRS. And after that, the Swiss bank paid Bill Clinton $1.5 million for speaking gigs. TheWall Street Journal reported all that and more Thursday in an article that highlights huge conflicts of interest that the Clintons have created in the recent past.

The piece begins by detailing how Clinton helped the global bank.

“A few weeks after Hillary Clinton was sworn in as secretary of state in early 2009, she was summoned to Geneva by her Swiss counterpart to discuss an urgent matter. The Internal Revenue Service was suing UBS AG to get the identities of Americans with secret accounts,” the newspaper reports. “If the case proceeded, Switzerland’s largest bank would face an impossible choice: Violate Swiss secrecy laws by handing over the names, or refuse and face criminal charges in U.S. federal court. Within months, Mrs. Clinton announced a tentative legal settlement—an unusual intervention by the top U.S. diplomat. UBS ultimately turned over information on 4,450 accounts, a fraction of the 52,000 sought by the IRS.”

There’s no way this man could be president, right? Just look at him: rumpled and scowling, bald pate topped by an entropic nimbus of white hair. Just listen to him: ranting, in his gravelly Brooklyn accent, about socialism. Socialism!

And yet here we are: In the biggest surprise of the race for the Democratic presidential nomination, this thoroughly implausible man, Bernie Sanders, is a sensation.

He is drawing enormous crowds—11,000 in Phoenix, 8,000 in Dallas, 2,500 in Council Bluffs, Iowa—the largest turnout of any candidate from any party in the first-to-vote primary state. He has raised $15 million in mostly small donations, to Hillary Clinton’s $45 million—and unlike her, he did it without holding a single fundraiser. Shocking the political establishment, it is Sanders—not Martin O’Malley, the fresh-faced former two-term governor of Maryland; not Joe Biden, the sitting vice president—to whom discontented Democratic voters looking for an alternative to Clinton have turned.

An attack on an American-funded military group epitomizes the Obama Administration’s logistical and strategic failures in the war-torn country.

Last week, the U.S. finally received some good news in Syria:.After months of prevarication, Turkey announced that the American military could launch airstrikes against Islamic State positions in Syria from its base in Incirlik. The development signaled that Turkey, a regional power, had at last agreed to join the fight against ISIS.

The announcement provided a dose of optimism in a conflict that has, in the last four years, killed over 200,000 and displaced millions more. Days later, however, the positive momentum screeched to a halt. Earlier this week, fighters from the al-Nusra Front, an Islamist group aligned with al-Qaeda, reportedly captured the commander of Division 30, a Syrian militia that receives U.S. funding and logistical support, in the countryside north of Aleppo. On Friday, the offensive escalated: Al-Nusra fighters attacked Division 30 headquarters, killing five and capturing others. According to Agence France Presse, the purpose of the attack was to obtain sophisticated weapons provided by the Americans.

The Islamic State is no mere collection of psychopaths. It is a religious group with carefully considered beliefs, among them that it is a key agent of the coming apocalypse. Here’s what that means for its strategy—and for how to stop it.

What is the Islamic State?

Where did it come from, and what are its intentions? The simplicity of these questions can be deceiving, and few Western leaders seem to know the answers. In December, The New York Times published confidential comments by Major General Michael K. Nagata, the Special Operations commander for the United States in the Middle East, admitting that he had hardly begun figuring out the Islamic State’s appeal. “We have not defeated the idea,” he said. “We do not even understand the idea.” In the past year, President Obama has referred to the Islamic State, variously, as “not Islamic” and as al-Qaeda’s “jayvee team,” statements that reflected confusion about the group, and may have contributed to significant strategic errors.

During the multi-country press tour for Mission Impossible: Rogue Nation, not even Jon Stewart has dared ask Tom Cruise about Scientology.

During the media blitz for Mission Impossible: Rogue Nation over the past two weeks, Tom Cruise has seemingly been everywhere. In London, he participated in a live interview at the British Film Institute with the presenter Alex Zane, the movie’s director, Christopher McQuarrie, and a handful of his fellow cast members. In New York, he faced off with Jimmy Fallon in a lip-sync battle on The Tonight Show and attended the Monday night premiere in Times Square. And, on Tuesday afternoon, the actor recorded an appearance on The Daily Show With Jon Stewart, where he discussed his exercise regimen, the importance of a healthy diet, and how he still has all his own hair at 53.

Stewart, who during his career has won two Peabody Awards for public service and the Orwell Award for “distinguished contribution to honesty and clarity in public language,” represented the most challenging interviewer Cruise has faced on the tour, during a challenging year for the actor. In April, HBO broadcast Alex Gibney’s documentary Going Clear, a film based on the book of the same title by Lawrence Wright exploring the Church of Scientology, of which Cruise is a high-profile member. The movie alleges, among other things, that the actor personally profited from slave labor (church members who were paid 40 cents an hour to outfit the star’s airplane hangar and motorcycle), and that his former girlfriend, the actress Nazanin Boniadi, was punished by the Church by being forced to do menial work after telling a friend about her relationship troubles with Cruise. For Cruise “not to address the allegations of abuse,” Gibney said in January, “seems to me palpably irresponsible.” But in The Daily Show interview, as with all of Cruise’s other appearances, Scientology wasn’t mentioned.

Some say the so-called sharing economy has gotten away from its central premise—sharing.

This past March, in an up-and-coming neighborhood of Portland, Maine, a group of residents rented a warehouse and opened a tool-lending library. The idea was to give locals access to everyday but expensive garage, kitchen, and landscaping tools—such as chainsaws, lawnmowers, wheelbarrows, a giant cider press, and soap molds—to save unnecessary expense as well as clutter in closets and tool sheds.

The residents had been inspired by similar tool-lending libraries across the country—in Columbus, Ohio; in Seattle, Washington; in Portland, Oregon. The ethos made sense to the Mainers. “We all have day jobs working to make a more sustainable world,” says Hazel Onsrud, one of the Maine Tool Library’s founders, who works in renewable energy. “I do not want to buy all of that stuff.”

A controversial treatment shows promise, especially for victims of trauma.

It’s straight out of a cartoon about hypnosis: A black-cloaked charlatan swings a pendulum in front of a patient, who dutifully watches and ping-pongs his eyes in turn. (This might be chased with the intonation, “You are getting sleeeeeepy...”)

Unlike most stereotypical images of mind alteration—“Psychiatric help, 5 cents” anyone?—this one is real. An obscure type of therapy known as EMDR, or Eye Movement Desensitization and Reprocessing, is gaining ground as a potential treatment for people who have experienced severe forms of trauma.

Here’s the idea: The person is told to focus on the troubling image or negative thought while simultaneously moving his or her eyes back and forth. To prompt this, the therapist might move his fingers from side to side, or he might use a tapping or waving of a wand. The patient is told to let her mind go blank and notice whatever sensations might come to mind. These steps are repeated throughout the session.